ILLINOIS POLLUTION CONTROL BOARD
February 6, 1997
W.R. MEADOWS, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 97-58
(Variance - Air)
OPINION AND ORDER OF THE BOARD (by M. McFawn):
This matter is before the Board on a motion to dismiss filed by respondent Illinois
Environmental Protection Agency (Agency) on December 27, 1996. The Agency requests that
the Board dismiss the variance petition filed by petitioner W.R. Meadows, Inc. (Meadows), on
the grounds that Meadows is actually seeking a variance not from limitations required to be
imposed by Board regulations, but only from limitations imposed by permit conditions, and
that the Board has no authority to grant such relief. Meadows filed its response to the motion
to dismiss on January 21, 1997. The Board will grant the Agency’s motion to dismiss because
variance relief is not available from permit conditions, and we find that Meadows is seeking a
variance from limitations imposed only as permit conditions.
Meadows filed its original petition for variance on August 25, 1996. On October 17,
1996, the Board found the petition deficient, and directed Meadows to file an amended
petition. Meadows filed an amended petition on November 18, 1996. On December 5, 1996,
the Board accepted this matter for hearing, but directed Meadows to submit supplemental
information concerning estimated emissions. In response, Meadows submitted supplemental
information on December 20, 1996. Subsequently, the Agency filed its motion to dismiss on
December 27, 1996, and Meadows filed its response thereto on January 21, 1997, along with a
motion to file instanter.
Initially, we grant Meadows’ motion for leave to file its response to the motion to
dismiss instanter. In support of its request for leave to file, Meadows asserts that it did not
receive a copy of the motion to dismiss until January 10, 1997, after contacting the Agency’s
attorney by telephone. Meadows also asserts that the Agency does not object to the grant of
the motion to file instanter. We will therefore consider Meadows response to the motion to
dismiss.
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VARIANCE REQUESTED
In its amended petition, Meadows requests a variance from the requirements of Section
9(b) of the Act, which provides:
No person shall:
b.
Construct, install, or operate any equipment, facility, vehicle, vessel, or aircraft
capable of causing or contributing to air pollution or designed to prevent air
pollution, of any type designated by Board regulations, without a permit granted
by the Agency, or in violation of any conditions imposed by such permit.
(415 ILCS 5/9(b).)
Additionally, Meadows seeks a variance from the requirements of the Board’s
regulations at 35 Ill. Adm. Code 218.114 and 203.203. The Board’s regulation at 35 Ill.
Adm. Code 218.114 provides:
No person shall violate any terms or conditions of a permit reflecting the requirements
of this Part, operate any source except in compliance with its permit, or violate any
other applicable requirements.
(35 Ill. Adm. Code 218.114.)
The Board’s regulation at 35 Ill. Adm. Code 203.203 provides, in relevant part:
d)
No permittee shall violate any condition contained in a construction permit
issued for a new major stationary source or major modification which is subject
to this Part.
(35 Ill. Adm. Code 203.203.)
Meadows is requesting a variance for its facility located in Hampshire, Kane County,
Illinois, which is in the Chicago severe nonattainment area for ozone. At this facility,
Meadows manufactures asphalt-saturated fiber expansion joint material for use in the
construction industry. Specifically, Meadows seeks relief from the requirements of Section
9(b) of the Environmental Protection Act (Act) (415 ILCS 5/9(b)) and the regulations at 35 Ill.
Adm. Code 218.114 and 203.203, which prohibit persons from operating in violation of
conditions imposed by an air permit. (Am. Pet. at 1.) Meadows also seeks the variance so
that it may contest the Agency’s application of Section 203.206(e) to its facility. (Am. Pet. at
2.)
Meadows requests this variance in order to deviate from the conditions in its current
Construction Permit. (Am. Pet. at 1;
see
Am. Pet. Exhibit. A.) The relevant conditions
(Nos. 2(a) and (b)) impose monthly and yearly restrictions on the quantities of materials that
Meadows can use in its asphalt-saturated fiber expansion joint material production operation,
and are intended to limit Meadows’ emission of volatile organic material (VOM) to 4 tons per
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month and 20.5 tons per year. These emission restrictions allow Meadows to maintain its
status as a “smaller source” for VOM emissions, pursuant to the regulations at 35 Ill. Adm.
Code 201.180 - 201.187, and ensure that Meadows is not subjected to the requirements
imposed on “major sources,” set forth at 35 Ill. Adm. Code Part 203. The material usage
restrictions and VOM emission limitations established in Meadows’ permit are consistent with
the limited manufacturing operations originally planned for the facility. (Am. Pet. at 8.)
Meadows seeks this variance so that it may increase its VOM emissions enough to
produce 525 pallets of asphalt-saturated fiber expansion joint material per month, as calculated
on an annual basis.
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(
See
Am. Pet. at 2, as amended by Meadows’ December 20, 1996
“Response to Board’s Request for Supplemental Information,” at 1.) Meadows states that the
variance is necessary due to a catastrophic fire which occurred at the facility of its primary
fiberboard expansion joint material supplier, Celotex. (Am. Pet. at 8.)
THE MOTION TO DISMISS
In its motion to dismiss, the Agency asserts that the statutory and regulatory provisions
from which Meadows seeks variance (Section 9(b) of the Act and Sections 218.114 and
202.203) impose no requirements or limitations on Meadows’ facility, and that Meadows is
actually only seeking a variance from the requirements imposed by special conditions 2(a) and
(b) in its current air permit. These limitations were based on Meadow’s proposed production
plans, and not upon a numerical emissions limit contained in a Board regulation.
Furthermore, the Agency points out that Meadows admits that increased emissions would not
violate any applicable regulations, but only violate its current permit limitations. (Motion to
Dismiss at 2.)
Given these facts, the Agency asserts that the Board may not grant the variance
requested because the Act does not confer authority on the Board to grant a variance from a
permit or permit condition; rather, the Board can only grant a variance from a rule,
regulation, requirement, or order of the Board. (Motion to Dismiss at 3, citing
Landfill Inc.
v. Pollution Control Board, 74 Ill.App.2d 541, 387 N.E.2d 258 (1979).) Lastly, the Agency
asserts that Meadows’ proper recourse would be to seek a permit modification from the
Agency, and should the Agency deny the requested permit modification, Meadows could then
appeal that determination to the Board.
In its response to the motion to dismiss, Meadows contends that a variance proceeding
is the proper proceeding in which to seek the requested relief. Meadows, citing East Moline
v. Pollution Control Board, 188 Ill. App. 3d 349, 544 N.E.2d 82 (3d Dist. 1989), asserts that
the proper procedure, when challenging an application of a rule to a particular facility, through
a permit or otherwise, is to petition for variance. Meadows also argues that the Agency has
applied Section 202.206(e) to its facility, and that such application is erroneous, and that it is
therefore seeking relief from application of this rule to its facility, and the permit conditions
1
It is unclear what production rate is permissible under Meadows’ permit; however, the
permitted rate is established by the material usage restrictions from which Meadows is seeking
relief.
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imposed upon Meadows as a result thereof. Finally, Meadows asserts that a permit
modification cannot provide it with the relief it seeks. Meadows asserts that its previous
request for a provisional variance was denied because of the Agency’s erroneous interpretation
of 35 Ill. Adm. Code 203.206 as requiring inclusion of fugitive emissions in determining
Meadows’ source status for purposes of permitting. (Response to the Motion to Dismiss at 4.)
ANALYSIS
The Agency is correct in that the Board does not grant variance relief from permit
conditions. Pursuant to Section 35 of Act, the Board has authority to grant a variance where a
petitioner has presented adequate proof that immediate compliance with the Board regulation at
issue would pose an arbitrary or unreasonable hardship. (415 ILCS 5/35(a) (1994).)
Furthermore, the Board has long held that it is without authority to grant variances from
permit conditions. In Illinois Power Company v. Illinois Environmental Protection Agency,
PCB 84-75,
slip op.
at 1 (July 19, 1984) the Board, citing Landfill, Inc. v. PCB 74 Ill.2d 541,
387 N.E. 2d 541, 387 N. E. 2d 258 (1978) stated:
The Board notes that it is without power to grant variances from permit conditions in
that so doing would improperly infringe upon the permitting authority of the Illinois
Environmental Protection Agency.
In City of Mount Olive v. Illinois Environmental Protection Agency, PCB 85-24
slip
op.
at 1 (March 7, 1985), the Board stated:
The Board does not have the power to grant variance from permit conditions; it can
only grant variance from Board regulations which [underlie] those conditions, thereby
allowing the Illinois Environmental Protection Agency to modify the permit.
Meadows’ reliance on East Moline v. Pollution Control Board, 544 N.E.2d 82, 135
Ill.Dec. 725 (Ill. App. 3d Dist. 1989) in support of its position that a petition for variance is
the proper procedure to challenge the application of a rule to a particular facility, through a
permit or otherwise, is erroneous. Its interpretation does not take into account the entirety of
the court’s holding in East Moline. In East Moline, the court stated, “The statutory
mechanism for obtaining relief from compliance with a regulation
on the basis of an arbitrary
or unreasonable hardship
is to petition for a variance under Section 35 of the Act.” (Id., 135
Ill.Dec. 727 (emphasis added).) However, the appropriate mechanism for challenging the
imposition of permit conditions
which are not necessary to avoid a violation of the Act or
Board regulations
is a permit appeal pursuant to Section 40 of the Act. (415 ILCS 5/40;
see
e.g.
East Moline at 135 Ill.Dec. 727.)
Because the Board cannot grant variance from permit conditions, we must determine
whether Meadows is in fact seeking variance relief from limitations imposed solely by permit
conditions. Meadows states that it is requesting the variance in order to “allow Meadows to
deviate from the conditions of its current Construction Permit.” (Am. Pet. at 1.)
Furthermore, Meadows admits that, “The VOM emissions associated with increased
production are not in excess of any applicable regulations. The VOM content of the asphalt is
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in compliance with 35 Ill. Adm. Code 218.920-218.928 [Subpart PP: Miscellaneous
Fabricated Product Manufacturing Processes].” (Am. Pet. at 9.) These statements make clear
that the limitations from which Meadows seeks relief are contained solely in permit conditions
which the Agency based on Meadow’s own proposed production schedule. They are not
numerical VOM emissions limitations specifically set out in the Act or Board regulations.
Meadows asserts that it is seeking not only a variance from permit conditions, but also relief
from the requirements of Section 9(b) of the Act, and the regulations at 35 Ill. Adm. Code
218.114 and 203.203. However, these statutory and regulatory provisions do not impose
separate limitations on Meadows, but merely require compliance with the permit conditions
imposed by the Agency. Allowing variance relief from these provisions would be tantamount
to allowing a variance from the permit conditions themselves.
We note that Meadows also argues that the Board does have authority to review the
permit conditions at issue, asserting that the conditions are based on the Agency’s application
of 35 Ill. Adm. Code 203.206(e) to Meadows’ facility, which would require Meadows to
include its fugitive emissions when determining whether its facility is a major source.
However, nothing in the record evidences that the Agency has applied this regulation to the
Meadows facility. While Meadows is concerned that the Agency will apply 35 Ill. Adm. Code
203.206(e) and find it to be a major source based upon the proposed increase in its emissions,
Meadows has not yet applied for a revision to its permit to allow such increased emissions.
This opinion constitutes the Board’s findings of fact and conclusions of law in this
matter.
ORDER
For all the reasons stated in the foregoing opinion, the Board grants the Agency’s
motion to dismiss W.R. Meadows’ petition for variance. This docket is closed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) provides for
the appeal of final Board orders within 35 days of the date of service of this order. The Rules
of the Supreme Court of Illinois establish filing requirements. (See also 35 Ill. Adm. Code
101.246 “Motions for Reconsideration”.)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the _____ day of ___________, 1997, by a vote
of ______________.
___________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board